92 Decision Citation: BVA 92-27232
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-54 115 ) DATE
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THE ISSUES
1. Entitlement to an increased (compensable) rating for
bilateral defective hearing.
2. Entitlement to an increased (compensable) rating for
residuals of a right index finger injury.
3. Entitlement to a compensable rating pursuant to the
provisions of 38 C.F.R. 3.324 (1991).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Carolyn Wiggins, Associate Counsel
INTRODUCTION
This matter came before the Board on appeal of an October
1990 rating decision of the San Juan, Puerto Rico, Regional
Office (hereinafter RO). The veteran had active military
service from March 1973 until March 1975. The notice of
disagreement was received in January 1991. A statement of
the case was issued in February 1991. The veteran's sub-
stantive appeal was received in April 1991. The appeal was
received and docketed at the Board in January 1992. The
veteran has been represented since March 1992 by
The American Legion. That organization submitted additional
written argument to the Board in May 1992. The case is now
ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO committed error in denying
a increased evaluations for bilateral defective hearing and
residuals of a right index finger injury, in that the
various manifestations of these disabilities are more severe
than currently evaluated and productive of a greater degree
of impairment than is reflected by the noncompensable
schedular evaluation currently assigned. Specifically, the
veteran asserts that he is now utilizing hearing aids.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claims for increased evaluations for
service-connected bilateral defective hearing and residuals
of a right index finger injury. It is also our decision
that the evidence supports the grant of a l0 percent rating
pursuant to 38 C,F.R. § 3.324.
FINDINGS OF FACT
1. The veteran has level I hearing in the right ear and
level IV hearing in the left ear.
2. The veteran's right index finger is not ankylosed or
amputated.
3. The veteran's bilateral hearing loss and residuals of a
right index finger injury clearly interfere with normal
employability.
CONCLUSIONS OF LAW
1. A compensable evaluation for bilateral defective hearing
is not warranted. 38 U.S.C.A. § 1155, 5107(b) (West 1991);
38 C.F.R. §§ 4.3, 4.85, and Part 4, Diagnostic Code 6100
(1991).
2. A compensable evaluation for residuals of a right index
finger injury is not warranted. 38 U.S.C.A. § 1155, 5107(b)
(West 1991); 38 C.F.R. § 4.31, 4.71a and Part 4, Diagnostic
Code 5153, 5225 (1991).
3. A 10 percent rating based on multiple noncompensable
service-connected disabilities interfering with normal
employability is warranted. 38 C.F.R. § 3.324 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that we have found that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a). We
find that he has presented a claim which is plausible. We
are also satisfied that all relevant facts have been
properly developed. No further assistance to the veteran is
required in order to comply with the duty to assist him
mandated by 38 U.S.C.A. § 5107(a) (West 1991).
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4 (1991).
In cases where a Chief of a VA Audiology Clinic certifies
that language difficulties make the use of both pure tone
average and speech discrimination inappropriate, Table VIa
provides numeric designations based solely on pure tone
averages in the frequencies of 1,000, 2,000, 3,000, and
4,000 cycles per second. The rating schedule provides
11 auditory acuity levels designated from level I for
essentially normal acuity through level XI for profound
deafness. 38 C.F.R. Part 4, 4.85, Diagnostic Codes 6100-6110
(1991).
Favorable or unfavorable ankylosis of the index finger of
either hand warrants a 10 percent evaluation. Amputation of
the index finger through the middle phalanx or at the distal
joint warrants a 10 percent rating. 38 C.F.R. Part 4,
Diagnostic Codes 5153, 5225 (1991).
Where the minimum schedular evaluation requires residuals
and the schedule does not provide a noncompensable
evaluation, a noncompensable evaluation will be assigned
when the required residuals are not shown. 38 C.F.R.
§ 4.31 (1991).
Whenever a veteran is suffering from two or more separate
permanent service-connected disabilities of such character
as clearly to interfere with normal employability, even
though none of the disabilities may be of compensable degree
under the 1945 Schedule for Rating Disabilities, a
10 percent disability rating is authorized, but not in
combination with any other rating. 38 C.F.R. § 3.324.
Service connection is currently in effect for bilateral
defective hearing. On a recent VA audiometric examination,
in August 1990, pure tone air conduction threshold levels,
in decibels, in the veteran's right ear for the frequencies
1,000 hertz, 2,000 hertz, 3,000 hertz, and 4,000 hertz were
15 decibels, 40 decibels, 45 decibels, and 55 decibels,
respectively for a pure tone average of 39 decibels. Pure
tone air conduction threshold levels, in decibels, for those
same four frequencies in the veteran's left ear were
45 decibels, 55 decibels, 65 decibels, and 80 decibels,
respectively, for a pure tone average of 61 decibels. Such
audiometric findings represent level I hearing in the right
ear and level IV hearing in the left ear and warrant the
noncompensable evaluation presently in effect. Accordingly,
a compensable evaluation for bilateral defective hearing is
not warranted.
Service connection is currently in effect for residuals of a
right index finger injury. On VA examination in January
1989, X-rays indicated no evidence of significant bony or
articular abnormality of the visualized bony structures. An
orthopedic examination of August 1990 revealed the distal
phalanx joint of the right index finger to have 20 degree
flexion contracture with tenderness. Since a compensable
rating for an index finger requires either ankylosis of the
finger or amputation of a portion of the finger and neither
is shown, a compensable rating for the residuals of a right
index finger injury is not warranted.
The veteran's bilateral hearing loss is a disability which
would impair employment in occupations where normal hearing
acuity is a requirement. His residuals of a right index
finger injury, including a flexion contracture and tenderness
of the finger would impair employability in occupations
which require full use of the right hand. It is our opinion
that these two disabilities satisfy the criteria of
38 C.F.R. § 3.324, outlined above, and that a 10 percent
rating based on that provision is warranted.
ORDER
An increased evaluation for bilateral defective hearing is
denied. An increased evaluation for residuals of a right
index finger injury is denied. A 10 percent rating pursuant
to 38 C.F.R. § 3.324 is granted, subject to the regulations
governing awards of monetary benefits.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
GEORGE R. SENYK
BRUCE E. HYMAN
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.